Late January 2023, the court of appeals issued a precedential opinion on amending a trust. In a question of whether a valid power-of-attorney had authority to amend a trust that expressly stated only the settlor could amend, it presented a battle of equally valid laws.
In particular, the power-of-attorney document was validly executed. It contained a non-standard clause that expressly authorized the attorney in fact to amend the trust. On the other hand, the trust document itself expressly stated the settlor shall have "express and total power" and "the absolute right" to amend or revoke the trust. That power being "personal" and could not be "exercised by any legal representative or agent."
The court overturned the district court and determined that the trust language prevailed. The trust must be interpreted to ascertain the settlor's intent. The language of the trust trumped the power-of-attorney document, even though it too expressed the settlor's intent.
The lesson: go first to the trust document. If you want to create flexibility to account for future changes, make those changes in conjunction with other actions. If you don't, you might be stuck with terms and language you no longer want controlling your affairs.
